Week of June 21, 2023

Trump Indictments and the 2024 Election


In 1992, Clinton advisor James Carville said, “It’s the economy stupid,” meaning that voters vote their pocketbooks rather other issues,

That doesn’t seem to be true today.  The leading contender for the Republican nomination and the leader in presidential polls against Biden is Donald Trump.  And instead of hurting him, the indictments against him have only improved his standing in the polls against Republican contenders for the nomination.

What Democrats thought would fatally cripple Trump has seemed to make him stronger.

At a recent speech in London, leading US pollster Frank Luntz surveyed the election landscape and noted he was wrong in 2021 to declare that Trump would never be president again.

“I now must acknowledge that it is a distinct possibility that Donald Trump could be elected president.  I did not believe that one a year ago,” he said.

I did not believe that the search of Mar-a-Lago would be handled so badly, I did not believe that the indictment of him in New York would be handled so badly.”

I did not believe that his opponents would be so inept as to strengthen him and the combination of all those makes him now viable, not just in the Republican primary, but in the general election.”

Clearly Democrats and leaders in the White House, FBI, and the DOJ thought that an indicted Trump would lose support and either withdraw or be defeated.

This week, Premise Polling shows Trump beating Biden, while DeSantis would lose to Biden.  This polling, taken after Trump’s arrest, shows Trump narrowly beating Biden 44% to 43%.  Although the polling was close, if Trump wins the popular vote, he will win the Electoral College by one of the biggest margins in American history.

DeSantis loses to Trump 54% to 34%.  He lost to Biden 36% to 41%.

Surprisingly, Trump is stronger with independents and Republican women than DeSantis.

Other Republican challengers are all in single digits.

Clearly, this wasn’t in the Democrats plans.  The plan was to so weaken Trump that he would lose to another primary candidate or win the nomination but be so weakened by the indictments that he would lose to Biden.  Biden, meantime, would not be seriously challenged in the primaries thanks to a cooperative Democratic National Committee.

But the best laid plans of mice and men often go awry. Biden’s dementia is getting obviously worse, and Vice President Harris has clearly shown that she is unable to be a competent alternative.

The Democratic bench is also weak.  President Kennedy’s nephew, Robert Kennedy, is currently garnering about 20% of the polls, but is considered a Democratic “Trump.”  He opposes vaccines and speaks out against the power of the deep state.  Even the Kennedy family opposes him.  However, keep an eye on Kennedy as a potential dark horse.

The most likely Democratic alternative is California Governor Newsom.  And, although California’s and Newsom’s progressive agendas are attractive to progressives, California’s current problems will hinder him in a national election.

The other problem is that most Americans have lost faith in the FBI, so no matter what comes out at Trump’s trial most Americans will not believe it – especially given the FBI corruption in the “Russiagate” affair.

According to a new Harvard CAPS Harris poll, 70% of respondents said that they were either very or somewhat concerned about interference by the FBI or other intelligence agencies in elections.  71% said recent changes had not done enough to prevent further interference and that “wide ranging” reform was still required.  This attitude could very well mean an acquittal or hung jury for Trump.

There is also the fact that the Department of Justice is trying a novel legal theory against Trump, which can lead the case to be thrown out or overturned by an appeals court.

The indictment is based on holding military documents and obstructing the government from taking them.  Prosecutors are using a clause in the Espionage Act about failure to turn over national defense information.  However, since the burden of proof is so high in the Espionage Act, they are using this one clause to prosecute Trump under the Presidential Records Act, which deals with official versus private presidential documents.

But the Presidential Records Act isn’t a criminal statute.  And, in 2012, the courts held in a case against Clinton that it was up to the president to determine which documents were private and which documents were property of the government.

Former Federal Prosecutor Will Scharf called it a “totally novel legal issue.”  “It’s never been tested before.  The Espionage Act has never been used to prosecute in this sort of a setting.”

A lawyer tweeted, “Promise that theory won’t fly with the Supreme Court.”

Another problem is the timing of the trial. Although defendants are promised a speedy trial, the issues are deeper.  The Constitutional right to a speedy trial is to benefit defendants, not the government prosecutor Jack Smith who wants a speedy trial. The defendants usually delay the trial to prepare for it.  There are also motions over legal issues, discovery, and the intent of the Espionage Act.  One legal challenge is the compelled testimony of former Trump lawyers.  There may also be motions for an expedited review of the case in appeal.

If there is any delay, which is nearly guaranteed, the Department of Justice follows a rule that says trials should not be held 90 days before an election if it impacts an election.  The first primary will be held in February 2024, while the trial must start in November.  If not, the trial must wait until after the election.

Of course, the DOJ can waive the rule, which would reinforce the opinion of half the electorate that the charges are political.

Of course, if a Republican president is elected, Trump could likely be pardoned.

In any case, this will be a prolonged trial.  The chance is that a verdict will not come out until after the election.  And there could never be a verdict if a Republican President is elected.

(Some polls came after preparing this draft suggest that Trump is losing some support)